Federal Indian Law - a primer

Federal Indian law - those laws that define
government-to-government relationships between sovereign Indian
nations and the republic of the United States, are older than
the republic itself. In 1778, ten years before the
republic elected its first president and convened its first
Congress, revolutionary colonists were anxious to make treaties of
peace and friendship with Indian tribes lest those tribes form
alliances with the British during the War of Independence.
The first tribe to make such a solemn compact - with
representatives of the Continental Congress - were the
Delaware. Over the course of the next century, the United
States government would authorize the negotiation of more than 500
more treaties. In time, three hundred and seventy one of
those were ratified by the U.S. Senate. These treaties,
and article VI, clause 2, of the Constitution, which deems these
solemn pacts to the 'supreme law of the land,' and the Commerce
Clause, which reserves (to Congress and excludes states) the
exclusive right to engage in commercial activities with Indian
tribes, form the backbone of federal Indian law.

What follows is a cursory listing of important precursors to
American Indian law and the subsequent cases heard in American
courts that have played such an important role in shaping federal
Indian law as we know it today. Recent cases, such as the
1998 caseIsleta Pueblo v. City of Albuquerque, and the 1999
decision inMinnesota v. Mille Lacs Band of Chippewa
Indians, are leading indicators of the battles that will be
fought over natural resources in the decades to come as those
resources become more and more scarce.

Precursors

Innocent
III and IV - Midway through the 13th
century, Pope Innocent IV, an intellectual pontiff known as the
'lawyer pope,' wrote a commentary on Innocent III's papal decree of
1204,Quod super his,thereby distinguishing the legal status and
rights of non-Christian societies and cultures against the emerging
background of legal scholarship known as natural law.
Innocent IV would ask: "Is it licit to invade a land that infidels
possess, or which belongs to them?" He went on to construct a
broad-based defense of the Crusades and the conditions justifying
Christian warfare against infidel peoples occupying the Holy
Lands. Innocent IV's underlying legal premise under the
rubric of 'natural law' was that Christ's life and death had
consecrated the Holy Lands as Christian territory. Therefore,
Christ's followers, not Muhammad's, should dwell there.

Turning Aristotle's humanism upside down, Innocent IV reasoned that
infidels indeed had a natural law right to the ownership of land,
but there was a catch. Pagan worship of idols and other
rights constituted an unpardonable breach of natural law, said
Innocent, and these blasphemous practices require Christ's supreme
representative on earth (himself) to intervene and set things
right. At the heart of his argument was the premise that
every rational creature was bound by the dictates of Christian and
Eurocentric precepts of natural law, standards of conduct that the
pope was require to enforce by the mantle of responsibility
transferred to him by divine law. Furthermore. The pope's
privileged authority on divine law made obedience to him the only
means of salvation. Today's lawyers would call this a 'bright
line,' or, a clearly defined boundary between what was holy and
what was blasphemous.

Innocent IV's commentary midway through the 13th century would
profoundly influence the thinking of kings and conquistadors in
discovery-era Europe two centuries later. Legal scholar and
author Robert Williams explains how Innocent IV's commentaries
successfully rooted themselves in the ensuing discourses on
conquest: "Secular power could be invoked to suppress
ecclesiastically defined evil in a world governed by the divinely
constructed precepts of natural law...Secular authority in and of
itself possessed no inherent function or aspect...it was only an
auxiliary power to be used by the pope in appropriate circumstances
and at his sole, divinely inspired discretion. This, needless
to say, suited the ambitions of the medieval popes. By
abstracting the principles of divine justice and remitting them in
an earthly form of crusading armies, the feudal-era papacy was
fulfilling its divinely ordained responsibility to establish the
Christian church as the dominant reality on earth."

This theocratically derived legal construct became the foundation
for the Doctrine of Discovery, a tenet of international law that
was eventually abandoned by European monarchs in the 18th century
at the same time the founders of the United States of America were
building this papal inspired doctrine into the founding charter of
the new republic.

Sepulveda v. Bartholome de las Casas
- After spending twenty-some years among the Caribbean Indians
on the islands of Hispaniola, the Dominican friar Bartholome de Las
Casas returned to his native Spain in 1555 to defend the natural
law rights of the natives in 'newly discovered lands.' The
battle between the prelate, arguing Innocentian law, and the
dogmatic philosopher Sepulveda, became the most celebrated debate
in discovery-era Europe. Sepulveda argued that the law of
nature was honored and understood only by the wisest and most
prudent of the higher races. Therefore, heathen Indians could
not possibly live by the law of nature. The Dominican priest
countered with the argument that the Indians had demonstrated the
rational capacity to comprehend the gospel (he estimated that 20
million Indians had been exterminated by the Spanish conquistadors
in less than half a century). Despite his passion and logic,
Las Casas's appeal to the crown failed to convince the king or his
lawyers that the Indians had a legitimate claim to rights and
privileges.

Lord Coke and Robert Calvin - In
1608, a decision in a case tried in Elizabethan England would have
consequences for Indians in the New World for the next three
centuries. A Scotsman named Robert Calvin filed a suit to
recover land that he claimed had been taken from him
unjustly. The opposing attorney argued that the claimant
Calvin was "an alien born" and therefore, since he was out of
allegiance to the king of England, his claim on English turf was
specious.

In considering this argument, Lord Coke, who had for the first time
systematized English common law, attempted to play Solomon by
making fine distinctions under the broad category of aliens: "A
perpetual enemy, as distinguished from friendly aliens, cannot
maintain any action or get anything within this realm. All
infidels are in lawperpetui inimici,perpetual enemies [of
enlightened people], and between them, as with devils whose
subjects they be, and the Christian people of the European states,
there is perpetual hostility, and there can be no peace."

Once the New World was claimed by the discoverer (the English
crown), the land and everything and everyone on it fell under the
province of the king. Therefore, the legal status of 'savages
and infidels' in the New World had already been decided in an
English court before the first colony was established at
Jamestown.

Lord Coke, in fact, would help draw up the official royal charter
for sir Walter Raleigh's new Virginia Company in 1606. As
agents of the king, Raleigh's company had the responsibility for
the propagation of "Christian religion to such people as yet living
in darkness and miserable ignorance of the true knowledge and
worship of God, and may in time bring the infidels and savages to
living civility." The king and his agents had not only a
right but a responsibility to be at war with infidels who refused
conversion to Christianity. Thanks to Lord Coke, explains
Robert Williams, Innocent IV's thirteen-century commentaries on
natural law had become the invisible hand that wrote the official
royal charter for the first English colony in the New World.

Landmarks in Indian Law

The
Marshall Trilogy - The following cases,Johnson v
McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester
v. Georgia (1832),comprise what is known today as the Marshall
Trilogy. In these three early Indian law cases, U.S.
Supreme Court Chief Justice John Marshall laid down the foundation
of Indian law at the same time he laid out the boundaries of the
federal trust relationship with the tribes, and realigned the
working cogs and wheels of government, known asfederalism, in
order to account for the hundreds of sovereign Indian nations
co-existing with the federal government inside a common
boarder.

The chief justice explained that treaties protect Native
Americansovereigntyas a preexisting condition to the ratification
of any treaty with the federal government. T complicate this
state of affairs for their descendants (us), the founders insisted
that the constitutional convention adopt treaties as the "supreme
law of the land." By doing so, the founders spread the jaws
of a trap that their descendants would step into many times over
the next two hundred years. In the 1990s, the waste industry
was only too happy to embrace Indian sovereignty when it attempted
to build landfills on Indian reservations all over the country
since Indian land was beyond the reach of federal regulators.
When the tribes began to use sovereignty as a legal tool to
withhold resources and to coerce tough deals with extraction
companies, sovereignty suddenly ceased to be such a wonderful thin
in the eyes of non-Indians.

Lone Wolf v. Hitchcock- In this watershed case from 1903, the
U.S. Supreme Court ruled that the United States Congress had
'plenary power' over Indian tribes. Legal scholars have
reminded Congress ever since that those powers are balanced against
their ongoing responsibilities to treaty tribes to act in the
tribe's best interest as legal trustee. Finding themselves in
conflict with the will of Congress, tribes such as the Mandan,
Hidatsa, and Arikara commonly encounter a Congress anxious to
exercise its 'plenary power" but reluctant to balance that power
against its responsibilities to protect Indian lands, resources,
and self-governance.

Winters Doctrine-
Indian law has evolved through several seventy-year
cycles. In the first decade of the 20th century, the U.S.
Supreme Court heard a case now referred to simply asWintersthat
built on the Marshall Trilogy and the 'Indian trust
doctrine.' InWinters, the court ruled that by entering
into a treaty wit the united States government some years prior,
the Gros Ventre tribe of Montana had reserved unto itself and its
tribal members all the natural rights of nationhood. The
court further explained that one of these reserved rights, which
did not have to be stipulated in the treaty to exist but rather
existed as a precondition to the treaty, was the tribe's right to
sufficient water to conduct its affairs, to engage in commerce, and
to raise crops or harvest fish. The water in question flowed
from the Milk River in Montana. White farmers and ranchers
were seeking to divert flow from the Milk River for their own
economic purposes. To their astonishment, the 'reserved
rights' of the tribe prevailed. This has set a standard for
all subsequence Indian law cases in which reserved rights are at
stake.

Canons of Construction-
Acannon of construction is a term of art used by
the courts to identify a legal principle that has become axiomatic
-- a legal guidepost ensuring continuity of interpretation from one
generation to the next. These legal aids to navigation, so to
speak, illuminate what would otherwise be a murky world. Two
canons of construction cited regularly in both the federal courts
and the Supreme Court areHagen v. Utah andWashington v.
Washington State Commercial Passenger Fishing Vessel Ass'n.

In the former, the court established the idea that ambiguities and
conflicts that arise in the interpretation of statutes "are to be
resolved in favor of the Indians." In other words, both a
win, and a draw, go to the tribes. This is a crucial
and deciding factor in many cases at the lower court level.
Nevertheless,Hagenis seldom cited or explained in news stories
dealing with Indian law decisions.

Similarly, in the latter case, the U.S. Supreme Court laid down a
powerful guiding principle when it ruled that the terms of treaties
and agreements with Indian tribes must be construed and interpreted
"in the sense in which they [the treaty conditions] would naturally
be understood by the Indians." Justice Sandra Day O'Connor
cited both of these canons when she wrote the majority opinion in
the high court's controversial 1999 decision inMinnesota v. Mille
Lacs Band of Chippewa Indians,in which the tribe's usufructory
rights to fish in their ancestral lakes was upheld over the
protests of the state of Minnesota (see following entry).

Minnesota v Mille Lacs Band of Chippewa
Indians - In this classic
case that pits a tribe against a state over the disposition of
treaty-protected 'usufructuary rights,' the court upheld the Mille
Lacs Chippewa's claim to 19th century treaty rights guaranteeing it
'reserved rights' to fish in Mille Lacs Lake in central
Minnesota. Non-Indian sports fishing groups, supported by the
state, fought the tribe's claim. The typical five-to-four
decision in this case (favoring the tribe) is an important
reaffirmation of earlier 'usufructuary rights' cases, such as the
infamous Boldt Decision of 1974 (see below). What was
interesting about this case was the fact that the lake in question
lies outside the modern boundaries of the Chippewa
reservation. Century-old usufructuary rights guaranteed the
tribe perpetual rights to fish, gather, and hunt in their
accustomed forests and lakes.

A few weeks later, the high court let stand a lower court ruling in
a case in Washington state that ruled in favor of seventeen Puget
Sound tribes who asserted a similar right of access to traditional
shellfish beds. In a decision that mirrored Mille Lacs in
many respects, the 9th Circuit Court of Appeals ruled that neither
the state of Washington nor the private property owners could deny
tribal members the right to cross private land in order to harvest
shellfish in their 'traditional and accustomed' manner.

The Boldt Decision
- About seventy years after theWintersdecision
(right on schedule) the 9th Circuit Court of Appeals was asked to
rule on a case that challenged the foundations of Indian law.
Treaty tribes on the West Coast, and in Puget Sound in particular,
began to assert their treaty rights over the storied salmon runs of
the Pacific Northwest. Clearly, salmon were already a
dwindling resource. In 1974, Judge George Boldt wrote a
landmark opinion for the court - one that the Supreme Court let
stand on appeal - that remains as controversial today as it was at
the time. Building on both Marshall's Trilogy andWinters(and
the underlying trust doctrine) the court ruled that the 'reserved
rights' of West Coast tribes guaranteed the Indians fully half of
the annual catch of the prized fish. White legislators,
politicians, and commercial fishermen were stunned.

The losing attorney in that case, Slade Gorton (the attorney
general for the state of Washington) went on to become a U.S.
senator. As a national legislator, Gorton repeatedly
attempted to undermine Indian sovereignty by introducing contrary
legislation, or budget riders, that sought to erode Congress'
responsibilities under the trust doctrine. This was a tried
and true strategy of state governments and white law makers, one
that had always failed because their efforts inevitably came up
against a solid wall of long-settled law that circumscribed state
power, and/or held the federal government responsible for
protecting Indian resources. Boldtwas a powerful reaffirmation
of theWintersdecision, in the modern era, just as Indian tribes
were beginning to assert their treaty rights and assess their
assets and wealth in natural resources, such as water, timber,
gold, oil, gas, copper and timber.

United States v. Michgan-
In the 1979 case ofUnited States v.
Michigan, Judge Noel p. Fox was asked to determine whether the
20th century descendants of 19th century Chippewa treaty
signatories had retained fishing rights under their treaties.
Further, if those rights were still secure, the suit asked how many
and what kind of fish could the Indians take.

In a powerful postscript to the Bold Decision, Judge Fox strongly
affirmed in a very wide-ranging decision the Indians' rights as
secured to them by the treaties of 1836 and 1854. He wrote:
"The mere passage of time has not eroded, and cannot erode, the
rights guaranteed by solemn treaties that both sides pledged on
their honor to uphold. The Indians have a right to fish today
wherever fish are to be found within the area of cession, a right
established by aboriginal right and confirmed by the Treaty of
Ghent and the Treaty of 1836."

Fox further emphasized the basis of these rights as being grounded
in treaties: "Because the right of the...tribes to fish in ceded
waters of the Great Lakes is protected by treaties...that right is
preserved and protected under the supreme law of the land, does not
depend on state law, is distinct from the rights and priviledges
held by non-Indians, and may not be qualified by an action of the
state..."

The Voigt Decision-
Nearly ten years after Boldt, states' rights activists in
Washington D.C. and state capital took another hit from a federal
appeals court, one that expanded on Boldt in ways no one had
anticipated. Oddly, Boldt centered on salmon while the Voigt
Decision focused on walleye perch.

In the early
1980s, Wisconsin's Chippewa tribe claimed a treaty right to spear
walleye in their ancestral lakes. Year after year, Indian spear
fishing provoked violent protests from white sports-fishing
groups. Year after year, Indians and whites spilled each
other's blood on regional boat landings. Initially, inLac
Courte Oreilles v. Voigt,Judge James Doyle decided against
aboriginal fishing claims. But on appeal, the 7th Circuit
reversed Doyle. At that time, Lester Voigt was the
director of the Wisconsin Department of Natural Resources.
The "Final Judgment" in this contentious case was written by Judge
Barbara Crabb. Crabb's ruling was issued in March 1991.
White/Indian relations in the Upper Midwest have never been the
same since.

Judge Crabb
ruled that the usufructuary rights of the tribes arising from the
Treaties of 1837 and 1842 included "rights to those forms of animal
life, fish, vegetation, and so one that they utilized at treaty
time...on their ancestral land, lakes, and rivers, regardless of
modern day reservation boundaries." Once again, non-Indians
were stunned. Wisconsin appealed. Six months later the
U.S. Supreme Court denied certiorari and refused to retry the
case. Wisconsin Governor Tommy Thompson was so angry that he
tried to buy out the Chippewa's treaty rights. The Indians
refused to sell. As with Boldt, Crabb's ruling has held sway
ever since.

Isleta Pueblo v. City of
Albuquerque -After fighting its way through the
court system for nearly ten years, the Isleta Pueblo tribe of New
Mexico won a landmark case in a federal court of appeals that
upheld the tribe's right to establish its own water-quality
standards. Those standards, fiercely contested by their
upstream neighbor, the city of Albuquerque, would force the city to
spend $300 million in upgrading its water-treatment facilities in
order to come into compliance with the Indians' water quality
standards. The tribe was the first in the nation to act on a
little known provision in the federal Clean Water Act of 1976 that
allowed tribal governments to establish water-quality standards
independently of the state in which they reside. In 1998, the
U.S. Supreme Court upheld a lower court that ruled in favor of the
Pueblo. Since that victory, dozens more tribes have followed
the Isleta's lead in a rush to protect their water from
off-reservation polluters. This avalanche of regulatory
freelancing by the tribes is viewed somewhat dimly by state
governments, developers, city planners, and mining-industry
lobbyists.